comply with re

§ 162. The third ground remains to be noticed, namely, 3. Refusal to the refusal by the person called as a witness to comply ligious forms. with religious forms; in other words, to guarantee the truth of his testimony by the sanction of an oath in any

shape. A perverse refusal to be sworn is always treated/Dec1258:20. as a contempt of court; but great difficulty has arisen in modern times from the circumstance that several sects of Christians, and individual members of other sects, entertain conscientious objections to the use of oaths; relying on the command in the New Testament, "Swear not at all (1)." In some instances the legislature, satis

(1) Matt. v. 34. In the original μn óμócai öλws, in the Vulgate "non jurare omninò;" and the prohibition is repeated James, v. 12. Most Christians consider that these words are only to be understood with reference to profane, rash, and perhaps evasive swearing, and were not at all intended to prohibit oaths taken according to the teaching of the Old Testament, “in truth, in judgment, and in righteousness." Jerem. iv. 2. The discourse contained in Matt. v., of which the above passage forms part, is directed generally against abuses and evasions that had crept into the observance of the moral law, all intention of revoking any part of which is expressly disclaimed: see ver. 17. Thus with respect to the subject in question: the Jews were commanded to swear by the name of God, Deut. vi. 13, and were told that they must not forswear themselves, Lev.xix. 12. Now, the Sermon on the Mount does not abrogate this, but, on the contrary, proceeds to shew that swearing by

created beings is in effect swear-
ing by the Creator of them "Ye
have heard that it hath been said
by them (qu. to them? éppéon rois
apxaíos) of old time, Thou shalt
not forswear thyself, but shalt per-
form unto the Lord thine oaths.
But I say unto you, Swear not at
all; neither by heaven, for it is
God's throne: nor by the earth,
for it is his footstool: neither by
Jerusalem, for it is the city of the
great King. Neither shalt thou
swear by thy head, because thou
canst not make one hair white or
black. But let your communi-
cation be, Yea, yea; Nay, nay:
for whatsoever is more than
these cometh of evil." Matt.
v. ver. 33, et seq. This seems con-
firmed by a subsequent passage of
this very gospel, Matt. xxiii. 16,
et seq., where our Lord addresses
the scribes and Pharisees thus:
"Woe unto you, ye blind guides,
say, Whosoever shall swear
by the temple, it is nothing: but
whosoever shall swear by the gold
of the temple, he is a debtor. Ye
fools, and blind: for whether is

fied that these scruples were bonâ fide, judiciously gave way to them, and interposed for the relief of the parties by substituting a solemn affirmation or declaration for an oath, rendering, however, a false affirmation or declaration punishable as for perjury. The statutes on this subject extend to members of the Society of Friends, (commonly called Quakers) (m), Moravians (n), and Separatists (o); as also to persons who have been Quakers or Moravians, but though ceasing to be such continue to object conscientiously to taking oaths (p). The difference in the forms of affirmation given by these statutes is singular. In the case of Quakers and Moravians it runs thus: "I A. B. being one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the United Brethren called Moravians, as the case may be,) do solemnly, sincerely and truly declare and affirm." With the Separatists it is:

greater, the gold, or the temple that sanctifieth the gold? And whosoever shall swear by the altar, it is nothing: but whosoever sweareth by the gift that is upon it, he is guilty. Ye fools, and blind for whether is greater, the gift, or the altar that sanctifieth the gift? Whoso therefore shall swear by the altar, sweareth by it, and by all things thereon. And whoso shall swear by the temple, sweareth by it, and by him that dwelleth therein. And he that shall swear by heaven, sweareth by the throne of God, and by him that sitteth thereon." One thing is however certain, that if the words "Swear not at all" are to be understood as an absolute prohibition of calling God to witness under any circumstances, the Apostle Paul has most unequi

vocally violated this command in
several passages of his epistles;
as, for instance, “Now the things
which I write unto you, behold,
before God, I lie not," Gal. i. 20.
"God is my witness, whom I
serve, &c.," Rom. i. 9. "I
call God for a record upon my
soul," 2 Cor. i. 23. See also
2 Cor. xi. 31; 1 Thes. ii. 5; Phil.
i. 8. In the Epistle to the He-
brews, ch. vi. ver. 16, also, he
"For men verily swear by
the greater and an oath for con-
firmation is to them an end of all
strife," and refers to the oath
taken by God himself to Abra-
ham, ver. 13-17.

(m) 3 & 4 Will. IV. c. 49.
(n) Id.

(0) 3 & 4 Will. IV. c. 82.
(p) 1 & 2 Vict. c. 77.

"I A. B. do, in the presence of Almighty God, solemnly, sincerely, and truly affirm and declare that I am a member of the religious sect called Separatists, and that the taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect; and I do also in the same solemn manner affirm and declare." This formula seems an oath in reality. In the remaining two cases the form is: "I A. B. having been one of the people called Quakers, (or one of the persuasion of the people called Quakers, or of the United Brethren called Moravians, as the case may be,) and entertaining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm." Members of other Christian sects, the tenets of which recognise the lawfulness of oaths, are not protected by statute, and are still compellable to be sworn.


§ 163. 3o. Incompetency from interest. Since the 3o. Incompepassing of the 6 & 7 Vict. c. 85, the only persons dis- tency from qualified from giving evidence on the ground of interest are the parties to the suit, and their wives; and although that incompetency has been in a great degree taken away by subsequent enactments, so that even with respect to them competency may now be looked on as the rule and incompetency the exception, still it will be advisable to treat the subject as it existed at common law, and then point out the extent of the statutory modifications.

the suit-Gene

§ 164. First, then, of the parties to the suit. "Nemo 1. Parties to in propriâ causâ testis esse debet (q)," was the rule of the ral rule. common law a rule, according to the best authorities, founded solely on the interest which the parties to the

(q) 1 Blackst. Com. 443. See also 3 Id. 371; Co. Litt. 6 b. It was the same in the civil law: see Dig. lib. 22, tit. 5, l. 10;

Cod. lib. 4, tit. 20, 1. 10; Hu-
berus, Præl. Jur. Civ. lib. 22, tit.
5, n. 6.


At common law. Prosecutors.

suit are supposed to have in it (s); and consequently, when it appears that they have none, or that any which they ever had has been removed, their evidence ought to be received; as, for instance, where one of several defendants has suffered judgment by default; or had a nolle prosequi entered against him, under circumstances which render him indifferent to the result of the contest between his companions and the plaintiff, &c. (t). So, if the name of a party appearing on the record as a defendant were conclusively to exclude him from being a witness, a plaintiff or prosecutor might in many cases obtain an unjust verdict, by making defendants of all the witnesses who could give evidence in favour of his real adversary (u). When, therefore, the court sees that there is no evidence against some of several defendants it will, in its discretion, direct a verdict to be taken for them before the others are called on for their defence (x). And a like practice is followed where the evidence of the person whose name appears on the record as defendant is required by the plaintiff or the crown (y).

§ 165. There were several common law exceptions to this part of the rule in question. The first which we shall notice is perhaps more apparent than real, viz. that the prosecutor of an indictment or information is in general a competent witness against the accused (≈). The reason of this is, that in contemplation of law the suit is the suit of the crown, instituted not to redress

(s) Ph. & Am. Ev. 47; Tayl. Ev. §§ 955, 956; Worrall v. Jones, 7 Bingh. 398, 399; Pipe v. Steele, 2 Q. B. 733.

(t) See Tayl. Ev. §§ 955-961. (u) 12 Ass. pl. 11 & 12; Dymoke's case, Sav. 34, pl. 81; Neilau v. Hanny, 2 Car. & K. 710.

(x) Creswick's case, Clayt. 37,

pl. 64; Anon. 1 Mod. 11, pl. 34; White v. Hill, 6 Q. B. 487; Wakeman v. Lindsey, 15 Jur. 79, and authorities in the last note.

(y) Tayl. Ev. § 958.

(z) "A doner evidence ches. cun serra admitte pur le roy." Staundf. P. C. 163.

the injury done to the person by whom the law is set in motion, but to punish the offender for disturbing the peace of the sovereign and the good order of society. And hence the appellor in an appeal of felony, while that mode of proceeding was in use, was not a competent witness against the appellee; for the suit was his own (a). The prosecutor of an indictment, &c. has not in general any direct pecuniary interest in the result; for although under certain statutes he may be awarded his costs, yet this is discretionary with the judge, and does not flow as a necessary consequence from a verdict of conviction. "But," as observed in a text work published before the passing of the 6 & 7 Vict. c. 85 (b), “although in general a prosecutor or party aggrieved has no interest in the event of a prosecution, and is therefore a competent witness, there are several classes of cases in which, by virtue of some legislative enactment, he is entitled to a particular benefit or advantage upon obtaining a conviction of the party accused. In these cases where the benefit or advantage will immediately result to the witness on a conviction being obtained, the witness will be interested, and he will be incompetent unless the general rule of law be dispensed with in the particular case, either by some legislative enactment, or some principle of public policy requiring that his evidence shall be received." The most important instance of this latter exception is in the case of prosecutions for robbery or theft, where the party injured is competent, notwithstanding he becomes entitled to a restitution of his property immediately upon obtaining a conviction of the offender (c). It seems, however, that these distinctions are now at an end, and the prosecutor is competent in all cases by virtue of the 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99 (d).

(a) 2 Hale, P. C. 281, 282.
(b) Ph. & Am. Ev. 66.
(c) Id.

(d) See the former of these statutes, supra, § 139; and the latter, infra.

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